View full sizeAssociated PressHarvard University students and employees watch Monday, May 10, 2010, at the Harvard Law School in Cambridge, Mass., as former law school dean Elena Kagan speaks on television after being nominated to the U.S. Supreme Court.CHRIS MONDICS, The Philadelphia Inquirer

PHILADELPHIA -- At a time when the ideal Supreme Court nominee comes coated in Teflon, the better to fend off partisan attacks, Elena Kagan has a pretty good resume.

She has never served as a judge and her writings reveal little about how she would rule on the most ideologically divisive issues of the day. The absence of any meaningful paper trail, apart from things such as her decision as Harvard Law School dean to ban military recruiters, makes her less of a target.

Yet there is one legal case in Kagan's background that to a small group of litigants constitutes a profound distortion of justice, a slap in the face that they say stings even now, one year later.

View full sizeAnd they contend the Senate Judiciary Committee should keep this case in mind, painful though it may be to revisit the matter, as it reviews Kagan's nomination in the coming weeks.

It was on May 29 of last year that Kagan -- as U.S. solicitor general -- filed legal papers with the Supreme Court urging it not to hear arguments in a lawsuit against the government of Saudi Arabia brought by thousands of family members and other victims of the Sept. 11, 2001, terrorist attacks.

Days later, the Supreme Court rejected the case, following the lead of the solicitor general, as it often does in deciding whether to weigh in on a matter.

The Supreme Court decision effectively let stand lower-court rulings that the Saudi government and senior members of the Saudi royal family could not be sued by U.S. citizens -- even if the plaintiffs had shown that millions of dollars in Saudi government money went to bankroll al-Qaida in the years leading up to the Sept. 11 attacks.

"We were terribly disappointed with her ruling," said Beverly Burnett, of Northfield, Minn., whose son, Tom, perished on United Flight 93 when it went down near Shanksville, Pa. "We had hoped she would be with us so that we could have our day in court."

What Burnett and many others desperately want to know is why, after evidence that some believe points to Saudi government responsibility for the attacks, they so far have been barred by U.S. courts from having their case heard. And why the Obama administration argued, through Kagan, that their case should not be heard.

Burnett and the other plaintiffs alleged in lawsuits brought by several law firms, including the Philadelphia firm of Cozen O'Connor P.C., that for years the Saudi government funded Islamist charities that in turn supplied money and logistical support to al-Qaida fighters in the Balkans and southeast Asia.

The plaintiffs charged that the Saudis continued to finance the charities even after U.S. officials on two occasions warned the money was being used to support terrorist operations.

Because of long-standing economic, military and diplomatic ties between the two countries, the litigation was sensitive for both the Obama administration and Saudis.

The Saudis complained in court papers that the lawsuits had upset relations between the two countries. And, as Kagan last year weighed what position to take in the Supreme Court appeal, plaintiffs' lawyers lobbied the administration to decide in their favor.

Kagan's amicus brief, which said such lawsuits would interfere with U.S. foreign policy, and the ensuing Supreme Court decision, prompted Sen. Arlen Specter, D-Pa., to introduce legislation that would amend the Foreign Sovereign Immunities Act. The law was cited as a reason for ruling against the plaintiffs. Specter sought to make clear that U.S. citizens can sue foreign governments that finance acts of terrorism, even in politically delicate situations.

Specter, who was joined by co-sponsors Sens. Lindsey Graham, R-S.C., and Charles Schumer, D-N.Y., was blunt in his criticism of Kagan. He contended that the Obama administration urged the Supreme Court not to hear the case because the litigation had become an irritant to U.S.-Saudi relations.

Of Kagan, he said, "She wants to coddle the Saudis."

Specter had earlier voted against her nomination to be solicitor general because, he said, she had ducked questions during her confirmation hearings on the Saudi litigation and other matters.

He still seemed irritated Monday. In a meeting with reporters, he promised as a member of the Senate Judiciary Committee to grill her once again on why the lawsuits should not go forward.

Family members of Sept. 11 victims, at the very least the ones who filed the lawsuits, would expect nothing less.

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